Mr PALLAS (Tarneit) — It gives me great pleasure to speak on the Jury Directions Bill 2012. The bill consolidates the law on jury direction — that is, those directions a judge gives a jury to help it to reach a verdict. In many ways this bill is a simplification of and indeed an improvement on the way the law currently operates. Labor does not oppose the bill, but we have a number of concerns we would like to place on the record and think government members should take into account in their deliberations on this bill and in regard to any consideration of legislation going forward in this area. In 2008 the Brumby government asked the Victorian Law Reform Commission (VLRC) to review the law surrounding jury directions. That came about in response to a public perception that jury directions had become more complex and had led to increasing delay and confusion — and indeed in some cases increased appeals — so it is gratifying to see that efforts are being made in this area.

When in opposition, the coalition, now government, made an election commitment to act on the VLRC’s recommendations, and the bill implements many of those recommendations. The government has flagged that it will seek to reform jury directions into the future and that there are more reforms to come. Justice Weinberg of the Court of Appeal presented the government with a report in October 2012 that could well lead to the government introducing further legislation. In this area it is important that we make it clear that trial judge need not use any particular form of words in giving directions. The bill states that the Parliament’s intent is for directions to be clear and brief, and to avoid technical legal language where possible. Quite frankly, I think that is a sensible suggestion. Far too often we find in the jury and legal process that, in order to effectively tick the non-appellable boxes, judges find themselves constrained in talking in quite direct terms to juries.

To avoid doubt it is important that that language be clear, succinct and comprehensible. Dare I say that there are examples of lawyers producing language that may not be comprehensible in all circumstances. It is eminent good sense that common language unconstrained by an unrealistic adherence to precedent is a valuable thing. So far as Labor is concerned there are further issues that the government should look at. We have put those clearly on the public record prior to this date and we urge the government to consider them going forward. I note that the Attorney-General, who is at the table, has indicated his concern that this is a thought bubble, as did the member opposite who just addressed this chamber and gave what I think was an unrealistic and unreasonable response. This thought bubble is a proposal that almost word for word the Chief Justice of the Supreme Court has previously seen to be of value.

The important thing is the idea of moving towards a role for juries in the process of the penalty process attached to conviction — it is critically important. It gives a sense of true democratisation that not only are jurors part of the process of determining guilt or innocence but they are also part of the process of determining what constitutes appropriate community standards. In those circumstances at no stage would we consider it appropriate for a jury to be in the position of usurping the views of a judge, but it is important to note that we are consistently hearing the community, through various forms of media, saying, ‘The judges got it wrong’, and increasingly the judiciary itself, in terms of its concerns, is finding this.

Mr PALLAS — I hear from the Attorney-General that the laws are wrong. In practice it could be either that the laws are wrong or that the community’s expectations had not been given proper effect to, or indeed that a judge got it wrong. All of those things are possible alternatives, but consideration of the consequences of not involving the community — in effect a jury of one’s peers — in the process of determining not only guilt or innocence but also what is an appropriate standard of penalty or punishment for that guilt once determined is an important part of the process that the judiciary would see as of great value. It gives it a touchstone to determine exactly what would be an appropriate form of incarceration, should that be imposed.

When the community expresses concern about the behaviour of a particular charge in imposing a particular sentence, the judge himself or herself would have the opportunity to say, ‘I have been advised and I either took that advice or I chose not to, and here is the reason why I chose to pursue what I did’. It is about openness and accountability in the sentencing process, because far too often the community feels alienated and estranged from the process of engagement.

I know the Attorney-General is quite disconcerted and concerned about this, but I urge him not to see this as anything but a considered and genuine concern about empowering the community in the sentencing process. It will be far too easy for this concern to be put aside, but were the Attorney-General to do that, I believe he would find he is on the wrong side of public debate and opinion on this matter. All we are seeking is for the Attorney-General to open his mind up to a process 

Mr PALLAS — The Attorney-General now relies on precedent. The great problem with what has happened in another — — Mr Clark interjected.

Mr PALLAS — I have read what the current Chief Justice of the Supreme Court has had to say about it.  The current Chief Justice effectively enunciated these concerns in public, which clearly is a sign of a degree of frustration by members of the judiciary about their capacity to get some sort of process where they can say, ‘We have listened to what the community’s views are’. Quite frankly, judges have a right to be independent. They have a right to form a view about what the appropriate level of penalty is, but they should also have the right to be adequately and appropriately advised by a jury of peers.

That is where the Attorney-General is blindsided on this issue. He raises issues about bureaucracy and time, but we are talking about the amount of time spent and the cost to, in many cases, incarcerate people, or indeed the costs associated with any other form of punishment. Costs need to be weighed up against the alternative. Therefore justice should be weighed in a very considered way, and in effect it needs to be a process that the community takes into account. The bill allows judges to give various explanations of the meaning of ‘beyond reasonable doubt’, the relevant clauses enlisting the points that judges can raise, use and connect, and so far as we are concerned this may give rise to an argument that the judge is allowed to raise only one of those points rather than all of them.

 That is an issue we ask the Attorney-General to look at in the context of the ‘beyond reasonable doubt’ issue. We have mentioned this issue in departmental briefings and suggested alternative wording, but the government and the Attorney-General remain unmoved by the more substantial alternative suggestion. We urge the Attorney-General to listen to the views of the community. It wants to be empowered in the sentencing process. Labor has put forward a process that would enable that, and clearly the Attorney-General has failed in this regard.

See Tim’s speech in Hansard here.